UNITED STATES, Appellee 

v. 

Timothy J. PENA, Senior Airman 

U.S. Air Force, Appellant 

No. 06-0091 

Crim. App. No. 35397 

United States Court of Appeals for the Armed Forces 

Argued October 16, 2006 

Decided January 16, 2007

EFFRON, C.J., delivered the opinion of the Court, in which BAKER 

and ERDMANN, JJ., joined. 

STUCKY and RYAN, JJ., did not participate. 

Counsel

For Appellant: Captain Vicki A. Belleau (argued); Lieutenant 

Colonel Mark R. Strickland and Major Sandra K. Whittington (on 

brief). 

 

For Appellee: Captain Jefferson E. McBride (argued); Colonel 

Gary F. Spencer and Lieutenant Colonel Robert V. Combs (on 

brief). 

 

Military Judge: Patrick M. Rosenow 

 

 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Pena, No. 06-0091/AF 

2

Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of a military judge sitting 

alone convicted Appellant, pursuant to his pleas, of attempted 

indecent assault, indecent assault, indecent exposure, indecent 

language, and adultery, in violation of Articles 80 and 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 934 

(2000), respectively. The sentence adjudged by the courtmartial and approved by the convening authority included a 

dishonorable discharge, confinement for one year, and reduction 

to the lowest enlisted grade. The convening authority deferred 

mandatory forfeitures until the date of the action, and waived 

automatic forfeitures for a period of six months, directing 

payment of the mandatory forfeitures to Appellant’s spouse for 

the benefit of his children. The United States Air Force Court 

of Criminal Appeals affirmed. United States v. Pena, 61 M.J. 

776 (A.F. Ct. Crim. App. 2005). 

On Appellant’s petition, we granted review of the following 

issues: 

I. WHETHER THE APPELLANT WAS IMPROPERLY 

PLACED ON EXCESS APPELLATE LEAVE AND 

DENIED PAY AND ALLOWANCES IN VIOLATION 

OF ARTICLE 76a, UCMJ, WHEN HIS SENTENCE 

TO CONFINEMENT WAS NOT COMPLETED OR 

REMITTED AND HE WAS FORCED TO FULFILL 

CONDITIONS OF MANDATORY SUPERVISION 

UPON HIS RELEASE FROM CONFINEMENT. 

II. WHETHER THE AIR FORCE CLEMENCY AND 

PAROLE BOARD INCREASED THE SEVERITY OF 
United States v. Pena, No. 06-0091/AF 

3

APPELLANT’S SENTENCE IN VIOLATION OF 

ARTICLE 55, UCMJ, AND THE EIGHTH 

AMENDMENT WHEN IT FORCED APPELLANT TO 

FULFILL CONDITIONS OF MANDATORY 

SUPERVISION THAT ARE NOT AUTHORIZED BY 

THE UCMJ. 

III. WHETHER THE IMPOSITION OF CONDITIONS OF 

MANDATORY SUPERVISION ON APPELLANT 

VIOLATES THE DUE PROCESS CLAUSE BECAUSE 

THE MILITARY JUDGE DID NOT ANNOUNCE A 

PERIOD OF MANDATORY SUPERVISED RELEASE 

OR ANY OF ITS CONDITIONS AS PART OF THE 

SENTENCE. 

IV. WHETHER APPELLANT’S PLEAS OF GUILTY ARE 

IMPROVIDENT BECAUSE THE MILITARY JUDGE 

DID NOT INFORM APPELLANT PRIOR TO 

ACCEPTING HIS PLEAS THAT HE COULD BE 

ADDITIONALLY PUNISHED IN UNSPECIFIED 

WAYS. 

 Appellant, who was sentenced to confinement for one year, 

served all but seventy-two days of that period in confinement at 

the Naval Consolidated Brig Miramar, in San Diego, California. 

During the remaining seventy-two days, the Government placed 

Appellant in the Department of Defense (DoD) Mandatory 

Supervised Release program against his wishes. 

 The granted issues concern Appellant’s early release from 

his sentence to confinement. Part I of this opinion summarizes 

the relationship between the DoD Mandatory Supervised Release 

program and other confinement and release programs in the 

military justice system. Part II describes the sentencing 

proceedings at Appellant’s trial and the terms and conditions 
United States v. Pena, No. 06-0091/AF 

4

applied to Appellant through the Mandatory Supervised Release 

program. Part III considers whether those terms or conditions 

provide a basis for relief under applicable standards of review. 

For the reasons set forth below, we affirm. 

I. THE DoD MANDATORY SUPERVISED RELEASE PROGRAM 

 Persons sentenced to confinement by a court-martial serve 

their period of imprisonment in facilities administered by the 

DoD, subject to exceptions not pertinent to the present appeal. 

Dep’t of Defense Dir. 1325.4, Confinement of Military Prisoners 

and Administration of Military Correctional Programs and 

Facilities (Aug. 17, 2001) [hereinafter DoD Dir. 1325.4]. The 

DoD traditionally has administered a variety of early release 

procedures for persons in confinement, such as good time and 

earned credits, return to duty programs, and parole. See Dep’t 

of Defense, Instr. 1325.7, Administration of Military 

Correctional Facilities and Clemency and Parole Authority, 

enclosure 26, para. E26.1-E26.5. (July 17, 2001, incorporating 

Change 1, June 10, 2003) [hereinafter DoD Instr. 1325.7]. 

 Parole is a form of conditional release from confinement 

under the guidance and supervision of a United States probation 

officer. Id. at enclosure 2, para. E2.1.11. In addition, 

parole is a voluntary program, in which the inmate applies to 

participate during the balance of his or her period of approved 
United States v. Pena, No. 06-0091/AF 

5

confinement. Id. at para. 6.17; Dep’t of Defense, Sentence 

Computation Manual 1325.7-M, at AP1.1.12 (July 27, 2004, 

Administrative Reissuance, incorporating Change 1, Aug. 30, 

2006) [hereinafter DoD Manual 1325.7-M]. The decision as to 

whether parole should be granted is vested in the Clemency and 

Parole Boards of the military departments. The decision is 

highly discretionary. See DoD Instr. 1325.7, at para. 6.16. 

Prior to release on parole, the inmate must have an approved 

parole supervision plan, and agree in writing to abide by the 

plan and conditions of supervision. Id. at para. 6.17.9.1. 

Violation of the terms and conditions may result in revocation 

of parole. Id. at para. 6.17.10. In general, the supervision 

of persons on parole is designed to enhance the person’s 

reintegration into civilian society. See id. at para. 6.17.9.2. 

 In 2001, the DoD introduced an additional early release 

mechanism, the Mandatory Supervised Release program. Mandatory 

Supervised Release covers specified classes of prisoners who 

have served sufficient time in confinement to be considered for 

parole, but who are not granted parole. Id. at para. 6.20.1. 

As with parole, Mandatory Supervised Release applies from the 

time of release from prison until the end of the prisoner’s 

approved sentence, and it may be revoked for violation of the 

terms and conditions of the program. Id. at paras. 6.17.9.4, 

6.17.9.6, 6.20.6.; DoD Manual 1325.7-M, at AP1.1.12. 
United States v. Pena, No. 06-0091/AF 

6

 In contrast to parole, which is a voluntary program, a 

prisoner may be placed involuntarily on Mandatory Supervised 

Release. See generally Policy Letter, Clemency and Parole 

Boards Mandatory Supervised Release Policy (May 23, 2003) (in 

Brief of Appellant at app. E). In addition to the conditions 

that may be imposed during parole, the Clemency and Parole Board 

may use the Mandatory Supervised Release program to impose “any 

additional reasonable supervision conditions . . . that would . 

. . further an orderly and successful transition to civilian 

life for released prisoners, and which would better protect the 

communities into which prisoners are released.” DoD Instr. 

1325.7, at para. 6.20.2. A prisoner who refuses to accept 

Mandatory Supervised Release or the conditions imposed by the 

Clemency and Parole Board is subject to discipline, including 

trial by court-martial. Clemency and Parole Boards Mandatory 

Supervised Release Policy Letter (May 23, 2003). See Policy 

Letter at ¶ E.5. 

 Mandatory Supervised Release differs in significant 

respects from the authority of the federal civilian courts to 

include in a sentence “a term of supervised release after 

imprisonment.” 18 U.S.C. § 3583(a) (2000). Unlike the federal 

civilian program, which is based on express statutory authority 

and involves terms that are adjudged as part of the sentence, 

the military’s Mandatory Supervised Release program is based on 
United States v. Pena, No. 06-0091/AF 

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executive authority, and involves terms that are imposed by 

executive branch officials well after completion of trial. 

II. THE ADJUDICATION AND ADMINISTRATION 

OF APPELLANT’S SENTENCE 

A. THE PROCEEDINGS AT TRIAL 

 After Appellant entered a plea of guilty to various charged 

offenses, the military judge conducted an inquiry into the 

providency of the plea. See Rule for Courts-Martial (R.C.M.) 

910. As part of the inquiry, the military judge explained the 

maximum punishment Appellant faced, based solely on the offenses 

to which he pled guilty. Appellant agreed with the military 

judge that he faced a dishonorable discharge from the service, 

forfeiture of all pay and allowances, forty-nine years of 

confinement, reduction to the grade of E-1, and a fine. The 

military judge asked Appellant if he had any questions about the 

specific punishments he faced, and Appellant responded in the 

negative. In addition, the military judge asked defense counsel 

whether he and Appellant had discussed the administrative 

ramifications of the punishments. Defense counsel responded in 

the affirmative. Neither the military judge nor defense counsel 

mentioned any specific administrative consequence. 

 Subsequently, during the sentencing proceeding the military 

judge reminded Appellant that he was facing a lengthy amount of 

confinement and asked him whether he had any additional 
United States v. Pena, No. 06-0091/AF 

8

questions. Appellant responded in the negative. The military 

judge sentenced Appellant to a dishonorable discharge, one year 

of confinement, and reduction to the grade of E-1. 

B. PLACEMENT OF APPELLANT IN THE 

MANDATORY SUPERVISED RELEASE PROGRAM 

 The Air Force assigned Appellant to serve his period of 

confinement at the Naval Consolidated Brig Miramar. During that 

period, the Air Force Clemency and Parole Board determined that 

he would not be granted parole. The Board ordered him to 

participate in the Mandatory Supervised Release program for a 

seventy-two day period, terminating on his maximum release date 

at the end of the adjudged period of confinement. 

 The Certificate of Mandatory Supervised Release 

(certificate) issued to Appellant by the Board set forth sixteen 

conditions generally applicable to persons in the program, along 

with an attachment containing nine additional conditions 

tailored to Appellant’s circumstances. The additional 

conditions required Appellant to: (1) participate in a 

community-based sex offender treatment program with a duration 

of at least twenty-four months, at his own expense; (2) have no 

contact with the victims without the prior approval of his 

probation officer; (3) abstain from the use and possession of 

pornography or sexually stimulating materials; (4) consent to 

periodic examinations of his computer, to include retrieval and 
United States v. Pena, No. 06-0091/AF 

9

copying of all data from his computer and/or removal of his 

computer equipment for the purpose of conducting a more thorough 

inspection; and consent to having installed on his computer, at 

his expense, any hardware or software monitoring systems; (5) 

abstain from adult book stores, sex shops, topless bars, or 

other locations that act as a sexual stimulus; (6) register as a 

sex offender in accordance with state law; (7) attend and 

participate in three meetings weekly concerning alcohol and 

narcotics abstention; (8) waive confidentiality in his relations 

with the sponsor of the treatment program so that his probation 

officer may monitor his progress in the program; and (9) abstain 

from consuming alcohol. The certificate provided that the term 

of mandatory supervision would expire on Appellant’s maximum 

release date. The confinement officials at Miramar advised 

Appellant that he was required to accept the conditions in the 

certificate. If Appellant refused to do so, he could be 

prosecuted in a court-martial for failure to obey an order or 

dereliction of duty, and he could be sent before a disciplinary 

board with the potential of losing good time credits and 

confinement privileges. 

 A month prior to his proposed release under the Mandatory 

Supervised Release program, Appellant submitted a letter to the 

Commander of the confinement facility at Miramar requesting 

permission to decline participation in the program without 
United States v. Pena, No. 06-0091/AF 

10

losing his good time credits. Appellant stated that he could 

adhere to all of the conditions in the attachment except for 

participation in the sex offender treatment program. He noted 

that while the state of Illinois would pay for his participation 

in a treatment program in Chicago, he would have to make a sixhour round trip from his expected place of residence. He added 

that he had not yet obtained a job, his wife was unable to work 

due to the imminent birth of a child, and his family would have 

no income. He also noted that his mother would provide his 

family with room, board, and incidentals, but that the burden 

would stretch “her financial situation beyond its limits.” He 

stated that “the bottom line is we cannot pay for transportation 

[to the treatment program] until I have secured a job and 

financially reestablished [my] family.” 

 Appellant did not receive a response. When he reached his 

minimum release date with seventy-two days left in his period of 

confinement, he was released into the Mandatory Supervised 

Release program on June 22, 2003. The post-trial record 

contains a declaration signed by Appellant on July 10, 2003, in 

which he noted a number of problems created by his participation 

in the Mandatory Supervised Release program. The declaration 

notes that he was unable to stop in Colorado to ship his 

household goods to Illinois, that he incurred a ten dollar per 

week expenditure for transportation to the sex offender 
United States v. Pena, No. 06-0091/AF 

11

treatment program, that he was required to attend Alcoholics 

Anonymous classes three times a week at night and sex offender 

treatment classes once a week during the day, that he had 

various other appointments and a requirement to give a urine 

sample on short notice every two weeks, and that the conditions 

of mandatory supervision left him unable to find work to support 

his family. The declaration was submitted when Appellant had 

completed eighteen out of the seventy-two days of his period of 

mandatory supervised release. Although the declaration noted 

that he was not employed, it did not describe his living 

circumstances, sources of support, or overall financial 

condition. The record contains no further information 

documenting the impact of the Mandatory Supervised Release 

program on Appellant during the remaining fifty-four days that 

he was in the program. In addition, the record contains no 

indication that he was subjected to any of the conditions of the 

Mandatory Supervised Release program after the end of the 

seventy-two day period. 

III. DISCUSSION 

A. THE TERMS AND CONDITIONS 

OF APPELLANT’S MANDATORY SUPERVISED RELEASE 

(ISSUES II, III, AND IV) 

 At the outset, we note that Appellant has challenged the 

authority of the DoD to establish the Mandatory Supervised 
United States v. Pena, No. 06-0091/AF 

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Release program in the absence of express statutory authority. 

Appellant asks us to invalidate a program under which the DoD 

releases individuals from prison prior to the completion of 

their adjudged sentence to confinement. On direct appeal, the 

scope of our review does not extend to supervision of all 

aspects of the confinement and release process. United States 

v. Towns, 52 M.J. 830, 833 (A.F. Ct. Crim. App. 2000), aff’d, 55 

M.J. 361 (C.A.A.F. 2001). Our review of post-trial confinement 

and release conditions on direct appeal is limited to the impact 

of such conditions on the findings and the sentence. See

Article 67(c), UCMJ, 10 U.S.C. § 867(c) (2000); United States v. 

Spaustat, 57 M.J. 256, 263 (C.A.A.F. 2002) (responsibility for 

determining how much good time credit, if any, will be awarded 

is an administrative responsibility, vested in the commander of 

the confinement facility). Accordingly, our review in the 

present appeal focuses on whether the post-trial conditions at 

issue: (1) constituted cruel or unusual punishment or otherwise 

violated an express prohibition in the UCMJ; (2) unlawfully 

increased Appellant’s punishment; or (3) rendered his guilty 

plea improvident. To the extent that the issues raised by 

Appellant otherwise challenge the administration of the 

Mandatory Supervised Release program, those matters -- including 

questions regarding the underlying legal authority for the 

program -- are not before us on direct review. 
United States v. Pena, No. 06-0091/AF 

13

1. Cruel or Unusual Punishment

 The Eighth Amendment prohibits “cruel and unusual 

punishments.” U.S. Const. amend. VIII. Similarly, Article 55, 

UCMJ, 10 U.S.C. § 855 (2000), prohibits “cruel or unusual 

punishment.” Article 55, UCMJ, also prohibits specified 

punishments, such as use of irons except for the purpose of safe 

custody, which are not at issue in the present appeal. See also

Article 12, UCMJ, 10 U.S.C. § 812 (2000) (prohibition on 

confinement in immediate association with enemy prisoners). 

 We review allegations of cruel or unusual punishment under 

a de novo standard. United States v. White, 54 M.J. 469, 471 

(C.A.A.F. 2001). In our evaluation of both constitutional and 

statutory allegations of cruel or unusual punishment, we apply 

the Supreme Court’s Eighth Amendment jurisprudence “in the 

absence of legislative intent to create greater protections in 

the UCMJ.” United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 

2006). 

 The Eighth Amendment prohibits punishments that are 

“‘incompatible with the evolving standards of decency that mark 

the progress of a maturing society, or which involve the 

unnecessary and wanton infliction of pain.’” Id. at 214 

(quoting Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)). 

Although the conditions at issue in the present appeal implicate 
United States v. Pena, No. 06-0091/AF 

14

other legal issues, as discussed below, none of these conditions 

constitute cruel or unusual punishment within the Eighth 

Amendment standards articulated by the Supreme Court. E.g., 18 

U.S.C. § 3583 (2000) (describing the conditions of mandatory 

release that may be imposed in criminal trials in the federal 

district courts). 

2. Impact on the adjudged sentence

 Appellant contends that his punishment was increased 

without providing the requisite constitutional, statutory, and 

regulatory components of notice and an opportunity to respond. 

We review such claims de novo. United States v. Rollins, 61 

M.J. 338, 343 (C.A.A.F. 2005). 

 The military sentencing process provides notice of the 

punishments at issue, an adversarial proceeding, and formal 

announcement of the sentence. See U.S. Const. amend. V; 

Articles 53, 56, and 60, UCMJ, 10 U.S.C. §§ 853, 856, 860 

(2000); R.C.M. 1001-1007. A servicemember “cannot be subjected 

to a sentence greater than that adjudged” by the court-martial. 

United States v. Stewart, 62 M.J. 291, 294 (C.A.A.F. 2006) 

(citing Waller v. Swift, 30 M.J. 139, 143 (C.M.A. 1990)). Cf.

White, 54 M.J. at 472 (noting our Court’s “authority to ensure 

that the severity of the adjudged and approved sentence has not 

been unlawfully increased by prison officials”). Although 
United States v. Pena, No. 06-0091/AF 

15

reviewing authorities have the power to commute a sentence to a 

different form of punishment, see Article 60(c)(2), UCMJ; 

Article 71, UCMJ, 10 U.S.C. §§ 871 (2000), this authority may 

not be exercised in a manner that increases the severity of the 

punishment. United States v. Carter, 45 M.J. 168, 170 (C.A.A.F. 

1996); Waller, 30 M.J. at 143; see R.C.M. 1107(d)(1), 

1107(f)(2). The question of whether a change in the form of 

punishment increases the severity of the punishment is 

contextual, requiring consideration of “all the circumstances in 

a particular case.” Carter, 45 M.J. at 170. 

 The foregoing considerations apply only to matters that 

constitute “punishment” within the meaning of the criminal law. 

As a general matter, the collateral administrative consequences 

of a sentence, such as early release programs, do not constitute 

punishment for purposes of the criminal law. See, e.g., United 

States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988) (impact of 

conviction on retirement benefits is a collateral administrative 

consequence, inappropriate for consideration at sentencing); 

United States v. Murphy, 26 M.J. 454, 457 (C.M.A. 1988) 

(classifying eligibility for a particular squadron as a 

collateral administrative consequence not to be considered in 

sentencing); United States v. Hannan, 17 M.J. 115, 123 (C.M.A. 

1984) (recognizing parole eligibility as a collateral 

administrative consequence of sentence). Whether a particular 
United States v. Pena, No. 06-0091/AF 

16

aspect of an early release program is administered in a manner 

that constitutes punishment requires a case-specific inquiry. 

Compare California Dep’t of Corrections v. Morales, 514 U.S. 499 

(1995), with Lynce v. Mathis, 519 U.S. 433 (1997). Cf. United 

States v. Fischer, 61 M.J. 415, 420 (C.A.A.F. 2005) (setting 

forth factors to be considered in determining whether 

governmental actions are regulatory or punitive in nature) 

(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963))). 

 The terms and conditions of Appellant’s Mandatory 

Supervised Release, as initially conveyed to him, potentially 

raised serious questions as to whether Appellant’s sentence had 

been increased. On its face, the attachment accompanying the 

Certificate of Mandatory Release suggested that Appellant was 

required to subject himself involuntarily to a sex offender 

treatment program for twenty-four months, a period extending 

well beyond his maximum release date. In addition, the 

attachment suggested that Appellant was required to expend a 

substantial amount of his own funds to pay for the treatment 

program and computer software. As the record indicates, 

however, and as defense counsel confirmed during oral argument, 

none of the conditions were imposed upon Appellant after his 

maximum release date, and he was not required to pay for his 

treatment program or any computer software. 
United States v. Pena, No. 06-0091/AF 

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 Although the defense brief sets forth a facial challenge to 

the Mandatory Supervised Release program and the conditions 

communicated to Appellant prior to his release, the defense has 

provided few details as to any actual impact on Appellant. On 

May 17, 2003, prior to his release, Appellant submitted a 

request for exemption from one of the conditions, participation 

in a treatment program, based upon concern as to what might 

occur upon release. That statement provides no information as 

to what actually happened to Appellant after he was released. 

On July 10, 2003, eighteen days after he was released under the 

Mandatory Supervised Release program, Appellant signed a 

declaration describing various difficulties that he had 

encountered in moving his household goods and obtaining 

employment as result of the requirements imposed by the 

Mandatory Supervised Release program. He also noted that he was 

required to expend ten dollars a week for transportation to a 

treatment program. The declaration, however, does not indicate 

what impact, if any, the Mandatory Supervised Release program 

had on Appellant’s sentence during the remaining fifty-four days 

prior to his maximum release date. 

 In the context of an issue that requires a showing of 

increased punishment, it is not sufficient to show that the 

conditions of mandatory release imposed some burdens on a 

released prisoner. All conditions of release impose burdens to 
United States v. Pena, No. 06-0091/AF 

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some degree. Those burdens, however, must be assessed in the 

context of release from a sentence to confinement. The question 

in each case is whether the burdens are such that they result in 

an increase in the punishment of confinement adjudged by the 

court-martial. Carter, 45 M.J. at 170. Such an assessment 

requires a case-specific analysis. See id.

 We do not take lightly the impact of the Mandatory 

Supervised Release program on Appellant during the initial 

eighteen day period or during the subsequent fifty-four days. 

Likewise, we do not disregard the possibility that the Mandatory 

Supervised Release program could be imposed in a manner that 

increases the punishment above the punishment adjudged by a 

court-martial. The burden, however, is on the party challenging 

the conditions to demonstrate that there has been an increase 

above the punishment of confinement imposed at trial. 

 When an appellant asks us to review the post-trial 

administration of a sentence, we are typically confronted by 

issues in which the pertinent facts are not in the record of 

trial. In such a case, it is particularly important that the 

appellant provide us with a “clear record” of the facts and 

circumstances relevant to the claim of legal error. See United 

States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997). The 

information about the personal, psychological, economic, and 

family impact of such measures is primarily in the control of 
United States v. Pena, No. 06-0091/AF 

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the party appealing the sentence, and that party bears the 

responsibility of submitting detailed documentation. The 

generalized statements in Appellant’s July 10, 2003, 

declaration, which cover only a portion of the time Appellant 

was in the Mandatory Supervised Release program, do not provide 

the clear record upon which we could evaluate whether the 

conditions of mandatory supervised release in this case produced 

an increase in Appellant’s sentence. Accordingly, Appellant has 

not demonstrated that his participation in the Mandatory 

Supervised Release program produced an impermissible increase in 

the punishment adjudged by the court-martial. 

3. Effect on the providency of the guilty plea

 We review claims as to the providency of a plea under a de 

novo standard. United States v. Harris, 61 M.J. 391, 398 

(C.A.A.F. 2005). An appellant who challenges the providency of 

a guilty plea must demonstrate “a substantial basis in law and 

fact for questioning the guilty plea.” United States v. Prater, 

32 M.J. 433, 436 (C.M.A. 1991) (quotation marks omitted). As a 

general matter, the military judge does not have an affirmative 

obligation to initiate an inquiry into early release programs as 

part of the plea inquiry. See Hannan, 17 M.J. at 123. When the 

challenge concerns an appellant’s claimed misunderstanding of 
United States v. Pena, No. 06-0091/AF 

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the collateral consequences of a court-martial, such as an early 

release program, an appellant must demonstrate that: 

the collateral consequences are major and 

the appellant’s misunderstanding of the 

consequences (a) results foreseeably and 

almost inexorably from the language of a 

pretrial agreement; (b) is induced by the 

trial judge’s comments during the providence 

inquiry; or (c) is made readily apparent to 

the judge, who nonetheless fails to correct 

that misunderstanding. In short, chief 

reliance must be placed on defense counsel 

to inform an accused about the collateral 

consequences of a court-martial conviction 

and to ascertain his willingness to accept 

those consequences. 

United States v. Bedania, 12 M.J. 373, 376 (C.M.A. 1982). In 

the present case, Appellant has not demonstrated that the 

collateral consequences actually imposed increased his 

punishment. See supra Part III.A.2. Moreover, neither the text 

of the plea agreement nor the record of the military judge’s 

plea inquiry contains any language that would have placed an 

obligation on the military judge to address the Mandatory 

Supervised Release program at that time. See United States v. 

Miller, 63 M.J. 452, 457 (C.A.A.F. 2006). We also note that 

Appellant has not claimed that his counsel was ineffective with 

respect to explaining collateral consequences, so we need not 

address whether counsel was under any obligation to do so. See

id. at 458. Under the circumstances of this case, Appellant has 

not demonstrated that his plea was improvident. 
United States v. Pena, No. 06-0091/AF 

21

B. APPELLATE LEAVE (ISSUE I) 

 During Appellant’s period of confinement, he forfeited his 

entitlement to pay and allowances following a six-month period 

in which the forfeitures were waived by the convening authority. 

See Article 58b(a), UCMJ, 10 U.S.C. § 858b(a) (2000) (providing 

for mandatory forfeiture of pay and allowances “during any 

period of confinement or parole” when the approved sentence of a 

general court-martial includes a punitive discharge). Following 

his release from confinement under the Mandatory Supervised 

Release program, Appellant was placed on appellate leave under 

Article 76a, UCMJ, § 10 U.S.C. 876a (2000) (providing 

discretion, under military department regulations, to place a 

servicemember on involuntary appellate leave after the convening 

authority’s action pending completion of appellate review when 

the sentence includes an unsuspended punitive discharge). The 

pertinent Air Force regulation provides: “An accused awaiting 

appellate review of an unsuspended punitive separation, who . . 

. already completed the period of confinement, may be 

involuntarily placed on excess leave . . . .” Dep’t of the Air 

Force, Instr. 51-201, Administration of Military Justice para. 

9.12.1 (Nov. 2, 1999). Although a person on involuntary 

appellate leave remains subject to military jurisdiction and 

possible recall, the individual returns to civilian life 

throughout the period of leave. See 10 U.S.C. § 701(e) (2000) 
United States v. Pena, No. 06-0091/AF 

22

(providing that any leave prior to discharge is still considered 

military service); 10 U.S.C. § 706(c) (2000) (acknowledging that 

a person on excess leave may obtain civilian employment). While 

on involuntary appellate leave, the individual is not entitled 

to pay and allowances. See Dep’t of Defense, Dir. 7000.14-R, 

Department of Defense Financial Management Regulation, volume 

7A, ch. 35, § 350101, para. B (Nov. 2005) (requiring pay only 

for the portion of appellate leave that a servicemember chooses 

to take as accrued leave); Dep’t of the Air Force, Instr. 36-

3003, Military Leave Program para. 6.8 (Oct. 20, 2005) 

(providing excess leave for a servicemember that has exhausted 

accrued leave, and noting that “[e]xcess leave is a no-pay 

status”). 

 Appellant contends that he should not have been placed on 

involuntary appellate leave for two reasons. First, he contends 

that as a practical matter he remained on active duty because 

the conditions imposed upon him by the Mandatory Supervised 

Release program constituted military duties for which he should 

have been paid. We need not decide whether such a claim is 

within the scope of our review under Article 67, UCMJ, because 

Appellant has not demonstrated that the conditions of his 

supervised release were so restrictive in nature or duration 

that they had the claimed effect of retaining him on active duty 

without pay. See supra Part III.A.2. Second, he contends that 
United States v. Pena, No. 06-0091/AF 

23

he did not “complete” his period of confinement under the Air 

Force Regulation because he was under a continuing threat of 

return to prison if he violated the terms of his release. The 

relationship between completion of confinement and commencement 

of leave is a matter governed by administrative regulations and 

service practices. Appellant has not demonstrated that the 

applicable regulations, either on their face or as applied, 

violated Article 76a, UCMJ, or any other provision of the UCMJ. 

Under these circumstances, Appellant has not demonstrated that 

this claim falls within the scope of our review under Article 

67, UCMJ. 

 

IV. DECISION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.